The Twelfth Amendment requires each elector to cast one vote for president and another vote for vice president.[4] In each state and the District of Columbia, electors are chosen every four years on the Tuesday after the first Monday in November, and then meet to cast ballots on the first Monday after the second Wednesday in December.[5] The candidates who receive a majority of electoral votes among the states are elected President and Vice President of the United States when the Electoral College vote is certified by Congress in January.

Each state chooses electors, amounting in number to that state's combined total of senators and representatives. There are a total of 538 electors, corresponding to the 435 representatives and 100 senators, plus the three electors the District of Columbia is provided by the Twenty-third Amendment.[6] The Constitution bars any federal official, elected or appointed, from being an elector. The Office of the Federal Register is charged with administering the Electoral College.[7] Since the mid-19th century when all electors have been popularly chosen, the Electoral College has elected the candidate who received the most popular votes, except in four elections: 1876, 1888, 2000, and 2016. In 1824, there were six states in which electors were legislatively appointed, rather than popularly elected, so the true national popular vote is uncertain; the electors failed to select a winning candidate, so the matter was decided by the House of Representatives.[8]

All states except Maine and Nebraska and California before 1913 have chosen electors on a "winner-take-all" basis since the 1880s.[9] Under the winner-take-all system, the state's electors are awarded to the candidate with the most votes in that state, thus maximizing the state's influence in the national election. Maine and Nebraska use the "congressional district method", selecting one elector within each congressional district by popular vote and awarding two electors by a statewide popular vote.[10] Although no elector is required by federal law to honor their pledge, there have been very few occasions when an elector voted contrary to a pledge and never once has it impacted the final outcome of a national election.[11][12]

If no person receives a majority of electoral votes for president, the Twelfth Amendment provides that the House of Representatives will select the president, with each of the fifty state delegations casting one vote. If no person receives a majority of electoral votes for vice president, then the Senate will select the vice president, with each of the 100 senators having one vote.[13][14]

Background

The Constitutional Convention in 1787 used the Virginia Plan as the basis for discussions, as the Virginia delegation had proposed it first. The Virginia Plan called for the Congress to elect the president.[15] Delegates from a majority of states agreed to this mode of election.[16] However, a committee formed to work out various details including the mode of election of the president, recommended instead the election be by a group of people apportioned among the states in the same numbers as their representatives in Congress (the formula for which had been resolved in lengthy debates resulting in the Connecticut Compromise and Three-Fifths Compromise), but chosen by each state "in such manner as its Legislature may direct." Committee member Gouverneur Morris explained the reasons for the change; among others, there were fears of "intrigue" if the president were chosen by a small group of men who met together regularly, as well as concerns for the independence of the president if he was elected by the Congress.[17] However once the Electoral College had been decided on, several delegates (Mason, Butler, Morris, Wilson, and Madison) openly recognized its ability to protect the election process from cabal, corruption, intrigue, and faction. Some delegates, including James Wilson and James Madison, preferred popular election of the executive. Madison acknowledged that while a popular vote would be ideal, it would be difficult to get consensus on the proposal given the prevalence of slavery in the South:

There was one difficulty however of a serious nature attending an immediate choice by the people. The right of suffrage was much more diffusive in the Northern than the Southern States; and the latter could have no influence in the election on the score of Negroes. The substitution of electors obviated this difficulty and seemed on the whole to be liable to the fewest objections.[18]

The Convention approved the Committee's Electoral College proposal, with minor modifications, on September 6, 1787.[19] Delegates from states with smaller populations or limited land area such as Connecticut, New Jersey and Maryland generally favored the Electoral College with some consideration for states.[20] At the compromise providing for a runoff among the top five candidates, the small states supposed that the House of Representatives with each state delegation casting one vote would decide most elections.[21]

Alexander Hamilton in Federalist No. 68 laid out what he believed were the key advantages to the Electoral College. The electors come directly from the people and them alone for that purpose only, and for that time only. This avoided a party-run legislature, or a permanent body that could be influenced by foreign interests before each election.[23] Hamilton explained the election was to take place among all the states, so no corruption in any state could taint "the great body of the people" in their selection. The choice was to be made by a majority of the Electoral College, as majority rule is critical to the principles of republican government. Hamilton argued, electors meeting in the state capitals were able to have information unavailable to the general public. Hamilton also argued that since no federal officeholder could be an elector none of the electors would be beholden to any presidential candidate.[23]

Another consideration was the decision would be made without "tumult and disorder", as it would be a broad-based one made simultaneously in various locales where the decision-makers could deliberate reasonably, not in one place, where decision-makers could be threatened or intimidated. If the Electoral College did not achieve a decisive majority, then the House of Representatives was to choose the president from among the top five candidates,[24] ensuring selection of a presiding officer administering the laws would have both ability and good character. Hamilton was also concerned about somebody unqualified, but with a talent for "low intrigue, and the little arts of popularity", attaining high office.[23]

Additionally, in the Federalist No. 10, James Madison argued against "an interested and overbearing majority" and the "mischiefs of faction" in an electoral system. He defined a faction as "a number of citizens whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community." What was then called republican government (i.e., federalism, as opposed to direct democracy), with its varied distribution of voter rights and powers, would countervail against factions. Madison further postulated in the Federalist No. 10 that the greater the population and expanse of the Republic, the more difficulty factions would face in organizing due to such issues as sectionalism.[25]

Although the United States Constitution refers to "Electors" and "electors", neither the phrase "Electoral College" nor any other name is used to describe the electors collectively. It was not until the early 19th century the name "Electoral College" came into general usage as the collective designation for the electors selected to cast votes for president and vice president. The phrase was first written into federal law in 1845 and today the term appears in 3 U.S.C.§ 4, in the section heading and in the text as "college of electors."[26]

History

Original plan

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The Congress may determine the Time of chusing [sic] the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

Article II, Section 1, Clause 3 of the Constitution provided the original plan by which the electors chose the president and vice president. Under the original plan, the candidate who received a majority of votes from the electors would become president; the candidate receiving the second most votes would become vice president.

The original plan of the Electoral College was based upon several assumptions and anticipations of the Framers of the Constitution:[27]

Individual electors would be elected by citizens on a district-by-district basis.[28]

Each presidential elector would exercise independent judgment when voting.

Candidates would not pair together on the same ticket with assumed placements toward each office of president and vice president.

The system as designed would rarely produce a winner, thus sending the election to Congress.

According to the text of Article II, however, each state government was free to have its own plan for selecting its electors, and the Constitution does not explicitly require states to popularly elect their electors. Several different methods for selecting electors are described at length below.

In 1800, the Democratic-Republican Party again nominated Jefferson for president, and also nominated Aaron Burr for vice president. After the election, Jefferson and Burr both obtained a majority of electoral votes, but tied one another with 73 votes each. Since ballots did not distinguish between votes for president and votes for vice president, every ballot cast for Burr technically counted as a vote for him to become president, despite Jefferson clearly being his party's first choice. Lacking a clear winner by constitutional standards, the election had to be decided by the House of Representatives pursuant to the Constitution's contingency election provision.

Having already lost the presidential contest, Federalist Party representatives in the lame duck House session seized upon the opportunity to embarrass their opposition and attempted to elect Burr over Jefferson. The House deadlocked for 35 ballots as neither candidate received the necessary majority vote of the state delegations in the House (the votes of nine states were needed for an election). Jefferson achieved electoral victory on the 36th ballot, but only after Federalist Party leader Alexander Hamilton – who disfavored Burr's personal character more than Jefferson's policies – had made known his preference for Jefferson.

Responding to the problems from those elections, the Congress proposed the Twelfth Amendment in 1803 – prescribing electors cast separate ballots for president and vice president – to replace the system outlined in Article II, Section 1, Clause 3. By June 1804, the states had ratified the amendment in time for the 1804 election.

Evolution to the general ticket

Alexander Hamilton described the framers' view of how electors would be chosen, "A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated [tasks]."[29] The founders assumed this would take place district by district. That plan was carried out by many states until the 1880s. For example, in Massachusetts in 1820, the rule stated "the people shall vote by ballot, on which shall be designated who is voted for as an Elector for the district."[30] In other words, the people did not place the name of a candidate for a president on the ballot, instead they voted for their local elector, whom they trusted later to cast a responsible vote for president.

Some states reasoned that the favorite presidential candidate among the people in their state would have a much better chance if all of the electors selected by their state were sure to vote the same way – a "general ticket" of electors pledged to a party candidate.[31] So the slate of electors chosen by the state were no longer free agents, independent thinkers, or deliberative representatives. They became "voluntary party lackeys and intellectual non-entities."[32] Once one state took that strategy, the others felt compelled to follow suit in order to compete for the strongest influence on the election.[31]

When James Madison and Hamilton, two of the most important architects of the Electoral College, saw this strategy being taken by some states, they protested strongly. Madison and Hamilton both made it clear this approach violated the spirit of the Constitution. According to Hamilton, the selection of the president should be "made by men most capable of analyzing the qualities adapted to the station [of president]."[29] According to Hamilton, the electors were to analyze the list of potential presidents and select the best one. He also used the term "deliberate." Hamilton considered a pre-pledged elector to violate the spirit of Article II of the Constitution insofar as such electors could make no "analysis" or "deliberate" concerning the candidates. Madison agreed entirely, saying that when the Constitution was written, all of its authors assumed individual electors would be elected in their districts and it was inconceivable a "general ticket" of electors dictated by a state would supplant the concept. Madison wrote to George Hay,

The district mode was mostly, if not exclusively in view when the Constitution was framed and adopted; & was exchanged for the general ticket [many years later].[33]

The founders assumed that electors would be elected by the citizens of their district and that elector was to be free to analyze and deliberate regarding who is best suited to be president.

Madison and Hamilton were so upset by what they saw as a distortion of the framers’ original intent that they advocated for a constitutional amendment to prevent anything other than the district plan: "the election of Presidential Electors by districts, is an amendment very proper to be brought forward", Madison told George Hay in 1823.[33] Hamilton went further. He actually drafted an amendment to the Constitution mandating the district plan for selecting electors.[34]

Evolution of selection plans

In 1789, at-large popular vote, the winner-take-all method, began with Pennsylvania and Maryland; Virginia and Delaware used a district plan by popular vote, and in the five other states participating in the election (Connecticut, Georgia, Maryland, New Hampshire New Jersey and South Carolina),[35] state legislatures chose. By 1800, Virginia and Rhode Island voted at-large, Kentucky, Maryland and North Carolina voted popularly by district, and eleven states voted by state legislature. Beginning in 1804 there was a definite trend towards the winner-take-all system for statewide popular vote.[36]

States using their state legislature to choose presidential electors have included fourteen states from all regions of the country. By 1832, only South Carolina used the state legislature, and it abandoned the method after 1860.[36] States using popular vote by district have included ten states from all regions of the country. By 1832 there was only Maryland, and from 1836 district plans fell out of use until the 20th century, though Michigan used a district plan for 1892 only.[37]

Since 1836, statewide, winner-take-all popular voting for electors has been the almost universal practice. As of 2016[update] Maine (from 1972) and Nebraska (from 1996) use the district plan, with two at-large electors assigned to support the winner of the statewide popular vote.[38]

Fourteenth Amendment

Section 2 of the Fourteenth Amendment allows for a state's representation in the House of Representatives to be reduced if a state unconstitutionally denies people the right to vote. The reduction is in keeping with the proportion of people denied a vote. This amendment refers to voting "at any election for the choice of electors for President and Vice President of the United States;" the only place in the Constitution mentioning electors being selected by popular vote.

On May 8, 1866, during a debate on the Fourteenth Amendment, Thaddeus Stevens, the leader of the Republicans in the House of Representatives, delivered a speech on the amendment's intent. Regarding Section 2, he said:[39]

The second section I consider the most important in the article. It fixes the basis of representation in Congress. If any State shall exclude any of her adult male citizens from the elective franchise, or abridge that right, she shall forfeit her right to representation in the same proportion. The effect of this provision will be either to compel the States to grant universal suffrage or so shear them of their power as to keep them forever in a hopeless minority in the national Government, both legislative and executive.[40]

Modern mechanics

The 2012 Certificate of Vote issued by Maryland's delegation to the Electoral College.

Summary

Even though the aggregate national popular vote is calculated by state officials, media organizations, and the Federal Election Commission, the people only indirectly elect the president, as the national popular vote is not the basis for electing the president or vice president. The president and vice president of the United States are elected by the Electoral College, which consists of 538 presidential electors from the fifty states and Washington, D.C. Presidential electors are selected on a state-by-state basis, as determined by the laws of each state. Since the election of 1824,[41] most states have appointed their electors on a winner-take-all basis, based on the statewide popular vote on Election Day. Maine and Nebraska are the only two current exceptions, as both states use the congressional district method. Although ballots list the names of the presidential and vice presidential candidates (who run on a ticket), voters actually choose electors when they vote for president and vice president. These presidential electors in turn cast electoral votes for those two offices. Electors usually pledge to vote for their party's nominee, but some "faithless electors" have voted for other candidates or refrained from voting.

A candidate must receive an absolute majority of electoral votes (currently 270) to win the presidency or the vice presidency. If no candidate receives a majority in the election for president or vice president, the election is determined via a contingency procedure established by the Twelfth Amendment. In such a situation, the House chooses one of the top three presidential electoral vote-winners as the president, while the Senate chooses one of the top two vice presidential electoral vote-winners as vice president.

Electors

Apportionment

State population per electoral vote for the 50 states and Washington D.C.

A state's number of electors equals the number of representatives plus two electors for both senators the state has in the United States Congress.[42][43] The number of representatives is based on the respective populations, determined every 10 years by the United States Census. Each representative represents on average 711,000 persons.[44]

Under the Twenty-third Amendment, Washington, D.C. is allocated as many electors as it would have if it were a state, but no more electors than the least populous state. The least populous state (which is Wyoming according to the 2010 Census) has three electors; thus, D.C. cannot have more than three electors. Even if D.C. were a state, its population would entitle it to only three electors; based on its population per electoral vote, D.C. has the second highest per-capita Electoral College representation, after Wyoming.[45]

Nomination

Candidates for elector are nominated by state chapters of nationally oriented political parties in the months prior to Election Day. In some states, the electors are nominated by voters in primaries, the same way other presidential candidates are nominated. In some states, such as Oklahoma, Virginia and North Carolina, electors are nominated in party conventions. In Pennsylvania, the campaign committee of each candidate names their respective electoral college candidates (an attempt to discourage faithless electors). Varying by state, electors may also be elected by state legislatures, or appointed by the parties themselves.[46]

Selection

Article II, Section 1, Clause 2 of the Constitution requires each state legislature to determine how electors for the state are to be chosen, but it disqualifies any person holding a federal office, either elected or appointed, from being an elector.[47] Under Section 3 of the Fourteenth Amendment, any person who has sworn an oath to support the United States Constitution in order to hold either a state or federal office, and later rebelled against the United States directly or by giving assistance to those doing so, is disqualified from being an elector. However, the Congress may remove this disqualification by a two-thirds vote in each House.

Since the Civil War, all states have chosen presidential electors by popular vote. This process has been normalized to the point the names of the electors appear on the ballot in only eight states: Rhode Island, Tennessee, Louisiana, Arizona, Idaho, Oklahoma, North Dakota and South Dakota.[11][48]

The Tuesday following the first Monday in November has been fixed as the day for holding federal elections, called the Election Day.[49] In 48 states and Washington, D.C., the "winner-takes-all method" is used (electors selected as a single bloc). Maine and Nebraska use the "congressional district method", selecting one elector within each congressional district by popular vote and selecting the remaining two electors by a statewide popular vote. This method has been used in Maine since 1972 and in Nebraska since 1996.[10]

The current system of choosing electors is called the "short ballot". In most states, voters choose a slate of electors, and only a few states list on the ballot the names of proposed electors. In some states, if a voter wants to write in a candidate for president, the voter is also required to write in the names of proposed electors.

After the election each state prepares seven Certificates of Ascertainment, each listing the candidates for president and vice president, their pledged electors, and the total votes each candidacy received.[50] One certificate is sent, as soon after Election Day as practicable, to the National Archivist in Washington D.C. The Certificates of Ascertainment are mandated to carry the State Seal, and the signature of the Governor (in the case of the District of Columbia, the Certificate is signed by the Mayor of the District of Columbia.[51])

Meetings

The Electoral College never meets as one body. Electors meet in their respective state capitals (electors for the District of Columbia meet within the District) on the Monday after the second Wednesday in December, at which time they cast their electoral votes on separate ballots for president and vice president.[52][53][54]

Although procedures in each state vary slightly, the electors generally follow a similar series of steps, and the Congress has constitutional authority to regulate the procedures the states follow. The meeting is opened by the election certification official – often that state's secretary of state or equivalent – who reads the Certificate of Ascertainment. This document sets forth who was chosen to cast the electoral votes. The attendance of the electors is taken and any vacancies are noted in writing. The next step is the selection of a president or chairman of the meeting, sometimes also with a vice chairman. The electors sometimes choose a secretary, often not himself an elector, to take the minutes of the meeting. In many states, political officials give short speeches at this point in the proceedings.

When the time for balloting arrives, the electors choose one or two people to act as tellers. Some states provide for the placing in nomination of a candidate to receive the electoral votes (the candidate for president of the political party of the electors). Each elector submits a written ballot with the name of a candidate for president. In New Jersey, the electors cast ballots by checking the name of the candidate on a pre-printed card; in North Carolina, the electors write the name of the candidate on a blank card. The tellers count the ballots and announce the result. The next step is the casting of the vote for vice president, which follows a similar pattern.

Each state's electors must complete six Certificates of Vote. Each Certificate of Vote must be signed by all of the electors and a Certificate of Ascertainment must be attached to each of the Certificates of Vote. Each Certificate of Vote must include the names of those who received an electoral vote for either the office of president or of vice president. The electors certify the Certificates of Vote and copies of the Certificates are then sent in the following fashion:[55]

A staff member of the President of the Senate collects the Certificates of Vote as they arrive and prepares them for the joint session of the Congress. The Certificates are arranged – unopened – in alphabetical order and placed in two special mahogany boxes. Alabama through Missouri (including the District of Columbia) are placed in one box and Montana through Wyoming are placed in the other box.[56] Before 1950, the Secretary of State's office oversaw the certifications, but since then the Office of Federal Register in the Archivist's office reviews them to make sure the documents sent to the archive and Congress match and that all formalities have been followed, sometimes requiring states to correct the documents.[7]

Faithlessness

Faithless electors are those who either cast electoral votes for someone other than the candidate of the party that they pledged to vote for or who abstain. Twenty-nine states plus the District of Columbia have passed laws to punish faithless electors, although none have ever been enforced. Many constitutional scholars claim that state restrictions would be struck down if challenged based on Article II and the Twelfth Amendment.[57] In 1952, the constitutionality of state pledge laws was brought before the Supreme Court in Ray v. Blair, 343 U.S.214 (1952). The Court ruled in favor of state laws requiring electors to pledge to vote for the winning candidate, as well as removing electors who refuse to pledge. As stated in the ruling, electors are acting as a functionary of the state, not the federal government. Therefore, states have the right to govern the process of choosing electors. The constitutionality of state laws punishing electors for actually casting a faithless vote, rather than refusing to pledge, has never been decided by the Supreme Court. However, in his dissent in Ray v. Blair, Justice Robert Jackson wrote: "no one faithful to our history can deny that the plan originally contemplated what is implicit in its text – that electors would be free agents, to exercise an independent and nonpartisan judgment as to the men best qualified for the Nation's highest offices."

While many laws only punish a faithless elector after the fact, states like Michigan also specify a faithless elector's vote be voided.[58]

As electoral slates are typically chosen by the political party or the party's presidential nominee, electors usually have high loyalty to the party and its candidate: a faithless elector runs a greater risk of party censure than criminal charges.

In 2000, elector Barbara Lett-Simmons of Washington, D.C. chose not to vote, rather than voting for Al Gore as she had pledged to do.[59] In 2016, seven electors voted contrary to their pledges. Faithless electors have never changed the outcome of any presidential election.[60]

Joint session of Congress and contingencies

The Twelfth Amendment mandates Congress assemble in joint session to count the electoral votes and declare the winners of the election.[61] The session is ordinarily required to take place on January 6 in the calendar year immediately following the meetings of the presidential electors.[62] Since the Twentieth Amendment, the newly elected Congress declares the winner of the election; all elections before 1936 were determined by the outgoing House.

The meeting is held at 1:00 pm in the Chamber of the U.S. House of Representatives.[62] The sitting vice president is expected to preside, but in several cases the President pro tempore of the Senate has chaired the proceedings. The vice president and the Speaker of the House sit at the podium, with the vice president in the seat of the Speaker of the House. Senate pages bring in the two mahogany boxes containing each state's certified vote and place them on tables in front of the senators and representatives. Each house appoints two tellers to count the vote (normally one member of each political party). Relevant portions of the Certificate of Vote are read for each state, in alphabetical order.

Members of Congress can object to any state's vote count, provided objection is presented in writing and is signed by at least one member of each house of Congress. An objection supported by at least one senator and one representative will be followed by the suspension of the joint session and by separate debates and votes in each House of Congress; after both Houses deliberate on the objection, the joint session is resumed. A state's certificate of vote can be rejected only if both Houses of Congress vote to accept the objection. In that case, the votes from the State in question are simply ignored. The votes of Arkansas and Louisiana were rejected in the presidential election of 1872.[63]

Objections to the electoral vote count are rarely raised, although it did occur during the vote count in 2001 after the close 2000 presidential election between Governor George W. Bush of Texas and the Vice President of the United States, Al Gore. Gore, who as vice president was required to preside over his own Electoral College defeat (by five electoral votes), denied the objections, all of which were raised only by several representatives and would have favored his candidacy, after no senators would agree to jointly object. Objections were again raised in the vote count of the 2004 elections, and on that occasion the document was presented by one representative and one senator. Although the joint session was suspended, the objections were quickly disposed of and rejected by both Houses of Congress. If there are no objections or all objections are overruled, the presiding officer simply includes a state's votes, as declared in the certificate of vote, in the official tally.

After the certificates from all states are read and the respective votes are counted, the presiding officer simply announces the final result of the vote and, provided the required absolute majority of votes was achieved, declares the names of the persons elected president and vice president. This announcement concludes the joint session and formalizes the recognition of the president-elect and of the vice president-elect. The senators then depart from the House Chamber. The final tally is printed in the Senate and House journals.

Contingent presidential election by House

The Twelfth Amendment requires the House of Representatives to immediately go into session to vote for a president if no candidate for president receives a majority of the electoral votes (since 1964, 270 of the 538 electoral votes).

In this event, the House of Representatives is limited to choosing from among the three candidates who received the most electoral votes for president. Each state delegation votes en bloc – each delegation having a single vote; the District of Columbia does not receive a vote. A candidate must receive an absolute majority of state delegation votes (i.e., at present, a minimum of 26 votes) in order for that candidate to become the President-elect. Additionally, delegations from at least two-thirds of all the states must be present for voting to take place. The House continues balloting until it elects a president.

The House of Representatives has chosen the president only twice: in 1801 under Article II, Section 1, Clause 3 and in 1825 under the Twelfth Amendment.

Contingent vice presidential election by Senate

If no candidate for vice president receives an absolute majority of electoral votes, then the Senate must go into session to elect a vice president. The Senate is limited to choosing from the two candidates who received the most electoral votes for vice president. Normally this would mean two candidates, one less than the number of candidates available in the House vote. However, the text is written in such a way that all candidates with the most and second most electoral votes are eligible for the Senate election – this number could theoretically be larger than two. The Senate votes in the normal manner in this case (i.e., ballots are individually cast by each senator, not by state delegations). However, two-thirds of the senators must be present for voting to take place.

Additionally, the Twelfth Amendment states a "majority of the whole number" of senators (currently 51 of 100) is necessary for election.[64] Further, the language requiring an absolute majority of Senate votes precludes the sitting vice president from breaking any tie which might occur,[65] although some academics and journalists have speculated to the contrary.[66]

The only time the Senate chose the vice president was in 1837. In that instance, the Senate adopted an alphabetical roll call and voting aloud. The rules further stated, "[I]f a majority of the number of senators shall vote for either the said Richard M. Johnson or Francis Granger, he shall be declared by the presiding officer of the Senate constitutionally elected Vice President of the United States"; the Senate chose Johnson.[67]

Deadlocked election

Section 3 of the Twentieth Amendment specifies if the House of Representatives has not chosen a president-elect in time for the inauguration (noon EST on January 20), then the vice president-elect becomes acting president until the House selects a president. Section 3 also specifies Congress may statutorily provide for who will be acting president if there is neither a president-elect nor a vice president-elect in time for the inauguration. Under the Presidential Succession Act of 1947, the Speaker of the House would become acting president until either the House selects a president or the Senate selects a vice president. Neither of these situations has ever occurred.

Number of electors from each state for the 2012, 2016 and 2020 presidential elections. 12 electoral votes changed between 18 states, based on the 2010 census. Eight states lost one electoral vote and two (New York & Ohio) each lost two electoral votes. Eight states gained electoral votes, six gained one electoral vote, Florida gained two & Texas gained four.

Before the advent of the short ballot in the early 20th century, as described above, the most common means of electing the presidential electors was through the general ticket. The general ticket is quite similar to the current system and is often confused with it. In the general ticket, voters cast ballots for individuals running for presidential elector (while in the short ballot, voters cast ballots for an entire slate of electors). In the general ticket, the state canvass would report the number of votes cast for each candidate for elector, a complicated process in states like New York with multiple positions to fill. Both the general ticket and the short ballot are often considered at-large or winner-takes-all voting. The short ballot was adopted by the various states at different times; it was adopted for use by North Carolina and Ohio in 1932. Alabama was still using the general ticket as late as 1960 and was one of the last states to switch to the short ballot.

The question of the extent to which state constitutions may constrain the legislature's choice of a method of choosing electors has been touched on in two U.S. Supreme Court cases. In McPherson v. Blacker, 146 U.S.1 (1892), the Court cited Article II, Section 1, Clause 2 which states that a state's electors are selected "in such manner as the legislature thereof may direct" and wrote these words "operat[e] as a limitation upon the state in respect of any attempt to circumscribe the legislative power". In Bush v. Palm Beach County Canvassing Board, 531 U.S.70 (2000), a Florida Supreme Court decision was vacated (not reversed) based on McPherson. On the other hand, three dissenting justices in Bush v. Gore, 531 U.S.98 (2000), wrote: "[N]othing in Article II of the Federal Constitution frees the state legislature from the constraints in the State Constitution that created it."[71]

Appointment by state legislature

In the earliest presidential elections, state legislative choice was the most common method of choosing electors. A majority of the states selected presidential electors by legislation in both 1792 (9 of 15) and 1800 (10 of 16), and half of the states did so in 1812.[72] Even in the 1824 election, a quarter of states (6 of 24) chose electors by legislation. In that election, Andrew Jackson lost in spite of having pluralities of both the popular and electoral votes,[73] with the outcome being decided by the six state legislatures choosing the electors. Some state legislatures simply chose electors, while other states used a hybrid method in which state legislatures chose from a group of electors elected by popular vote.[74] By 1828, with the rise of Jacksonian democracy, only Delaware and South Carolina used legislative choice.[73] Delaware ended its practice the following election (1832), while South Carolina continued using the method until it seceded from the Union in December 1860.[73] South Carolina used the popular vote for the first time in the 1868 election.[75]

Excluding South Carolina, legislative appointment was used in only four situations after 1832:

In 1848, Massachusetts statute awarded the state's electoral votes to the winner of the at-large popular vote, but only if that candidate won an absolute majority. When the vote produced no winner between the Democratic, Free Soil, and Whig parties, the state legislature selected the electors, giving all 12 electoral votes to the Whigs.[76]

In 1864, Nevada, having joined the Union only a few days prior to Election Day, had no choice but to appoint.[76]

In 1868, the newly reconstructed state of Florida appointed its electors, having been readmitted too late to hold elections.[76]

Finally, in 1876, the legislature of the newly admitted state of Colorado used legislative choice due to a lack of time and money to hold a popular election.[76]

Legislative appointment was brandished as a possibility in the 2000 election. Had the recount continued, the Florida legislature was prepared to appoint the Republican slate of electors to avoid missing the federal safe-harbor deadline for choosing electors.[77]

The Constitution gives each state legislature the power to decide how its state's electors are chosen[73] and it can be easier and cheaper for a state legislature to simply appoint a slate of electors than to create a legislative framework for holding elections to determine the electors. As noted above, the two situations in which legislative choice has been used since the Civil War have both been because there was not enough time or money to prepare for an election. However, appointment by state legislature can have negative consequences: bicameral legislatures can deadlock more easily than the electorate. This is precisely what happened to New York in 1789 when the legislature failed to appoint any electors.[78]

Electoral districts

Another method used early in U.S. history was to divide the state into electoral districts. By this method, voters in each district would cast their ballots for the electors they supported and the winner in each district would become the elector. This was similar to how states are currently separated by congressional districts. However, the difference stems from the fact every state always had two more electoral districts than congressional districts. As with congressional districts, moreover, this method is vulnerable to gerrymandering.

Proportional vote

Under such a system, electors would be selected in proportion to the votes cast for their candidate or party, rather than being selected by the statewide plurality vote.[79]

Congressional district method

There are two versions of the congressional district method: one has been implemented in Maine and Nebraska; another has been proposed in Virginia. Under the implemented congressional district method, the electoral votes are distributed based on the popular vote winner within each of the states' congressional districts; the statewide popular vote winner receives two additional electoral votes.[80]

In 2013, a different version of the congressional district method was proposed in Virginia. This version would distribute Virginia's electoral votes based on the popular vote winner within each of Virginia's congressional districts; the two statewide electoral votes would be awarded based on which candidate won the most congressional districts, rather than on who won Virginia's statewide popular vote.[81]

The congressional district method can more easily be implemented than other alternatives to the winner-takes-all method, in view of major party resistance to relatively enabling third parties under the proportional method. State legislation is sufficient to use this method.[82] Advocates of the congressional district method believe the system would encourage higher voter turnout and incentivize presidential candidates to broaden their campaigns in non-competitive states.[83] Winner-take-all systems ignore thousands of popular votes; in Democratic California there are Republican districts, in Republican Texas there are Democratic districts. Because candidates have an incentive to campaign in competitive districts, with a district plan, candidates have an incentive to actively campaign in over thirty states versus seven "swing" states.[84][85] Opponents of the system, however, argue candidates might only spend time in certain battleground districts instead of the entire state and cases of gerrymandering could become exacerbated as political parties attempt to draw as many safe districts as they can.[86]

Unlike simple congressional district comparisons, the district plan popular vote bonus in the 2008 election would have given Obama 56% of the Electoral College versus the 68% he did win, it "would have more closely approximated the percentage of the popular vote won [53%]".[87]

Implementation

Of the 43 states whose electoral votes could be affected by the congressional district method, only Maine and Nebraska apply it today. Maine has four electoral votes, based on its two representatives and two senators. Nebraska has two senators and three representatives, giving it five electoral votes.[88] Maine began using the congressional district method in the election of 1972. Nebraska has used the congressional district method since the election of 1992.[89]Schwartz, Maralee (April 7, 1991). "Nebraska's Vote Change". The Washington Post.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles> Michigan used the system for the 1892 presidential election,[80][90][91] and several other states used various forms of the district plan before 1840: Virginia, Delaware, Maryland, Kentucky, North Carolina, Massachusetts, Illinois, Maine, Missouri, and New York.[92]

The congressional district method allows a state the chance to split its electoral votes between multiple candidates. Prior to 2008, neither Maine nor Nebraska had ever split their electoral votes.[80] Nebraska split its electoral votes for the first time in 2008, giving John McCain its statewide electors and those of two congressional districts, while Barack Obama won the electoral vote of Nebraska's 2nd congressional district.[93] Following the 2008 split, some Nebraska Republicans made efforts to discard the congressional district method and return to the winner-takes-all system.[94] In January 2010, a bill was introduced in the Nebraska legislature to revert to a winner-take-all system;[95] the bill died in committee in March 2011.[96] Republicans had also passed bills in 1995 and 1997 to eliminate the congressional district method in Nebraska, but those bills were vetoed by Democratic Governor Ben Nelson.[94]

In 2010, Republicans in Pennsylvania, who controlled both houses of the legislature as well as the governorship, put forward a plan to change the state's winner-takes-all system to a congressional district method system. Pennsylvania had voted for the Democratic candidate in the five previous presidential elections, so some saw this as an attempt to take away Democratic electoral votes. Although Democrat Barack Obama won Pennsylvania in 2008, he won only 55% of Pennsylvania's popular vote. The district plan would have awarded him 11 of its 21 electoral votes, a 52.4% that is closer to the popular vote yet still overcoming Republican gerrymandering.[97][98] The plan later lost support.[99] Other Republicans, including Michigan state representative Pete Lund,[100]RNC Chairman Reince Priebus, and Wisconsin Governor Scott Walker, have floated similar ideas.[101][102]

Contemporary issues

Arguments between proponents and opponents of the current electoral system include four separate but related topics: indirect election, disproportionate voting power by some states, the winner-takes-all distribution method (as chosen by 48 of the 50 states), and federalism. Arguments against the Electoral College in common discussion mostly focus on the allocation of the voting power among the states. Gary Bugh's research of congressional debates over proposed constitutional amendments to abolish the Electoral College reveals reform opponents have often appealed to a traditional version of representation, whereas reform advocates have tended to reference a more democratic view.[103][104][105]

Criticism

Non-determinacy of popular vote

This graphic demonstrates how the winner of the popular vote can still lose in a hypothetical electoral college system.

A bar graph of popular votes in presidential elections (through 2012), with blue stars marking the four elections in which the winner did not have the plurality of the popular vote. Black squares mark the cases where the electoral vote resulted in a tie, or the winner did not have the majority of electoral votes. An 'H' marks the two cases where the election was decided by the House, and an 'S' marks the one case where the election was finalized by the Supreme Court.

The elections of 1876, 1888, 2000, and 2016 produced an Electoral College winner who did not receive at least a plurality of the nationwide popular vote.[106] In 1824, there were six states in which electors were legislatively appointed, rather than popularly elected, so it is uncertain what the national popular vote would have been if all presidential electors had been popularly elected. When no candidate received a majority of electoral votes in 1824, the election was decided by the House of Representatives and so could be considered distinct from the latter four elections in which all of the states had popular selection of electors.[107] The true national popular vote was also uncertain in the 1960 election, and the plurality for the winner depends on how votes for Alabama electors are allocated.[108]

Opponents of the Electoral College claim such outcomes do not logically follow the normative concept of how a democratic system should function. One view is the Electoral College violates the principle of political equality, since presidential elections are not decided by the one-person one-vote principle.[106] Outcomes of this sort are attributable to the federal nature of the system. Supporters of the Electoral College argue candidates must build a popular base that is geographically broader and more diverse in voter interests than either a simple national plurality or majority. Neither is this feature attributable to having intermediate elections of Presidents, caused instead by the winner-takes-all method of allocating each state's slate of electors. Allocation of electors in proportion to the state's popular vote could reduce this effect.

Comparison of the four elections in which the Electoral College winner (projected winner in the 2016 election) lost the popular vote.

Elections where the winning candidate loses the national popular vote typically result when the winner builds the requisite configuration of states (and thus captures their electoral votes) by small margins, but the losing candidate secures large voter margins in the remaining states. In this case, the very large margins secured by the losing candidate in the other states would aggregate to a plurality of the ballots cast nationally. However, commentators question the legitimacy of this national popular vote; pointing out that the national popular vote observed under the Electoral College system does not reflect the popular vote observed under a National Popular Vote system; as each electoral institution produces different incentives for, and strategy choices by, presidential campaigns.[109][110] Because the national popular vote is irrelevant under the electoral college system, it is generally presumed candidates base their campaign strategies around the existence of the Electoral College; any close race has candidates campaigning to maximize electoral votes by focusing their get-out-the-vote efforts in crucially needed swing states and not attempting to maximize national popular vote totals by using limited campaign resources to run up margins or close up gaps in states considered "safe" for themselves or their opponents, respectively. Conversely, the institutional structure of a national popular vote system would encourage candidates to pursue voter turnout wherever votes could be found, even in "safe" states they are already expected to win, and in "safe" states they have no hope of winning.

Educational YouTuber CGP Grey, who has produced several short videos criticizing the Electoral College, has illustrated how it is technically possible to win the necessary 270 electoral votes while winning only 22% of the overall popular vote, by winning the barest simple majority of the 40 smallest states and the District of Columbia. Though the current political geography of the United States makes such an election unlikely (it would require winning both reliably Democratic jurisdictions like Massachusetts and D.C. and reliably Republican states like Utah and Alaska), he argues that a system in which such a result is even remotely possible is "indefensible".[111]

The United States is the only country that elects a politically powerful president via an electoral college and the only one in which a candidate can become president without having obtained the highest number of votes in the sole or final round of popular voting.

Exclusive focus on large swing states

These maps show the amount of attention given to each state by the Bush and Kerry campaigns during the final five weeks of the 2004 election. At the top, each waving hand represents a visit from a presidential or vice presidential candidate during the final five weeks. At the bottom, each dollar sign represents one million dollars spent on TV advertising by the campaigns during the same time period.[112]

According to this criticism, the Electoral College encourages political campaigners to focus on a few so-called "swing states" while ignoring the rest of the country. Populous states in which pre-election poll results show no clear favorite are inundated with campaign visits, saturation television advertising, get-out-the-vote efforts by party organizers and debates, while "four out of five" voters in the national election are "absolutely ignored", according to one assessment.[113] Since most states use a winner-takes-all arrangement in which the candidate with the most votes in that state receives all of the state's electoral votes, there is a clear incentive to focus almost exclusively on only a few key undecided states; in recent elections, these states have included Pennsylvania, Ohio, and Florida in 2004 and 2008, and also Colorado in 2012. In contrast, states with large populations such as California, Texas, and New York, have in recent elections been considered "safe" for a particular party – Democratic for California and New York and Republican for Texas – and therefore campaigns spend less time and money there. Many small states are also considered to be "safe" for one of the two political parties and are also generally ignored by campaigners: of the 13 smallest states, six are reliably Democratic, six are reliably Republican, and only New Hampshire is considered as a swing state, according to critic George C. Edwards III.[106] In the 2008 election, campaigns did not mount nationwide efforts but rather focused on select states.[106]

Discouragement of turnout and participation

Except in closely fought swing states, voter turnout is largely insignificant due to entrenched political party domination in most states. The Electoral College decreases the advantage a political party or campaign might gain for encouraging voters to turn out, except in those swing states.[114] If the presidential election were decided by a national popular vote, in contrast, campaigns and parties would have a strong incentive to work to increase turnout everywhere.[115] Individuals would similarly have a stronger incentive to persuade their friends and neighbors to turn out to vote. The differences in turnout between swing states and non-swing states under the current electoral college system suggest that replacing the Electoral College with direct election by popular vote would likely increase turnout and participation significantly.[114]

Obscuring disenfranchisement within states

According to this criticism, the electoral college reduces elections to a mere count of electors for a particular state, and, as a result, it obscures any voting problems within a particular state. For example, if a particular state blocks some groups from voting, perhaps by voter suppression methods such as imposing reading tests, poll taxes, registration requirements, or legally disfranchising specific minority groups, then voting inside that state would be reduced. But the state's electoral count would be the same. So disenfranchisement has no effect on the overall electoral tally. Critics contend that such disenfranchisement is partially obscured by the Electoral College. A related argument is the Electoral College may have a dampening effect on voter turnout: there is no incentive for states to reach out to more of its citizens to include them in elections because the state's electoral count remains fixed in any event. According to this view, if elections were by popular vote, then states would be motivated to include more citizens in elections since the state would then have more political clout nationally. Critics contend the electoral college system insulates states from negative publicity as well as possible federal penalties for disenfranching subgroups of citizens.

Legal scholars Akhil Amar and Vikram Amar have argued the original Electoral College compromise was enacted partially because it enabled the southern states to disenfranchise its slave populations.[116] It permitted southern states to disfranchise large numbers of slaves while allowing these states to maintain political clout within the federation by using the three-fifths compromise. They noted that constitutional Framer James Madison believed the question of counting slaves had presented a serious challenge but that "the substitution of electors obviated this difficulty and seemed on the whole to be liable to the fewest objections."[117] Akhil and Vikram Amar added that:

The founders' system also encouraged the continued disfranchisement of women. In a direct national election system, any state that gave women the vote would automatically have doubled its national clout. Under the Electoral College, however, a state had no such incentive to increase the franchise; as with slaves, what mattered was how many women lived in a state, not how many were empowered ... a state with low voter turnout gets precisely the same number of electoral votes as if it had a high turnout. By contrast, a well-designed direct election system could spur states to get out the vote.

Advantage based on state population

Researchers have variously attempted to measure which states' voters have the greatest impact in such an indirect election.

Each state gets a minimum of three electoral votes, regardless of population, which gives low-population states a disproportionate number of electors per capita.[120] For example, an electoral vote represents nearly four times as many people in California as in Wyoming.[120][123] Sparsely populated states are likely to be increasingly overrepresented in the electoral college over time, because Americans are increasingly moving to big cities, most of which are in big states.[120] This analysis gives a strong advantage to the smallest states, but ignores any extra influence that comes from larger states' ability to deliver their votes as a single block.

Countervailing analyses which do take into consideration the sizes of the electoral voting blocks, such as the Banzhaf power index (BPI) model based on probability theory lead to very different conclusions about voters relative power.[clarification needed] It was found that based on 1990 census and districting, individual voters in California, the largest state, had 3.3 times more individual power to choose a President than voters of Montana, the largest of the minimum 3 elector states.[124][clarification needed] Because Banzhaf's method ignores the demographic makeup of the states, it has been criticized for treating votes like independent coin-flips. More empirically based models of voting yield results which seem to favor larger states less.[125]

Disadvantage for third parties

In practice, the winner-take-all manner of allocating a state's electors generally decreases the importance of minor parties.[126] However, it has been argued the Electoral College is not a cause of the two-party system, and that it had a tendency to improve the chances of third-party candidates in some situations.[106]

Support

Prevention of an urban-centric victory

Proponents of the Electoral College claim that it prevents a candidate from winning the presidency by simply winning in heavily populated urban areas, and pushes candidates to make a wider geographic appeal than they would if they simply had to win the national popular vote.[127] They believe that adoption of the popular vote would shift the disproportionate focus to large cities at the expense of rural areas.[128]

Proponents of a national popular vote for president dismiss such arguments, pointing out combined population of the 50 biggest cities (not including metropolitan areas) only amounts to 15% of the population,[129][130] and that candidates in popular vote elections for governor and U.S. Senate, and for statewide allocation of electoral votes, do not ignore voters in less populated areas.[131] In addition, it is already possible to win the required 270 electoral votes by winning only the 11 most populous states; what currently prevents such a result is the organic political diversity between those states (three reliably Republican states, four swing states, and four reliably Democratic states), not any inherent quality of the Electoral College itself.[132] If all of those states came to lean reliably for one party, than the Electoral College itself would bring about an urban-centric victory.

Maintenance of the federal character of the nation

The United States of America is a federal coalition which consists of component states. Proponents of the current system argue the collective opinion of even a small state merits attention at the federal level greater than that given to a small, though numerically equivalent, portion of a very populous state. The system also allows each state the freedom, within constitutional bounds, to design its own laws on voting and enfranchisement without an undue incentive to maximize the number of votes cast.

For many years early in the nation's history, up until the Jacksonian Era, many states appointed their electors by a vote of the state legislature, and proponents argue that, in the end, the election of the President must still come down to the decisions of each state, or the federal nature of the United States will give way to a single massive, centralized government.[133]

In his book A More Perfect Constitution, Professor Larry Sabato elaborated on this advantage of the Electoral College, arguing to "mend it, don't end it", in part because of its usefulness in forcing candidates to pay attention to lightly populated states and reinforcing the role of the state in federalism.[134]

Enhancement of the status of minority groups

Instead of decreasing the power of minority groups by depressing voter turnout, proponents argue that by making the votes of a given state an all-or-nothing affair, minority groups can provide the critical edge that allows a candidate to win. This encourages candidates to court a wide variety of such minorities and advocacy groups.[133]

Encouragement of stability through the two-party system

Proponents of the Electoral College see its negative effect on third parties as beneficial. They argue the two party system has provided stability because it encourages a delayed adjustment during times of rapid political and cultural change. They believe it protects the most powerful office in the country from control by what these proponents view as regional minorities until they can moderate their views to win broad, long-term support across the nation. Advocates of a national popular vote for president suggest that this effect would also be true in popular vote elections. Of 918 elections for governor between 1948 and 2009, for example, more than 90% were won by candidates securing more than 50% of the vote, and none have been won with less than 35% of the vote.[135]

Flexibility if a presidential candidate dies

According to this argument, the fact the Electoral College is made up of real people instead of mere numbers allows for human judgment and flexibility to make a decision, if it happens that a candidate dies or becomes legally disabled around the time of the election. Advocates of the current system argue that human electors would be in a better position to choose a suitable replacement than the general voting public. According to this view, electors could act decisively during the critical time interval between when ballot choices become fixed in state ballots[136] until mid-December when the electors formally cast their ballots.[137] In the election of 1872, losing Liberal Republican candidate Horace Greeley died during this time interval which resulted in disarray for the Democratic Party, who also supported Greeley, but the Greeley electors were able to split their votes for different alternate candidates.[138][139][140] A situation in which the winning candidate died has never happened. In the election of 1912, Vice PresidentSherman died shortly before the election when it was too late for states to remove his name from their ballots; accordingly, Sherman was listed posthumously, but the eight electoral votes that Sherman would have received were cast instead for Nicholas Murray Butler.[141]

Isolation of election problems

Some supporters of the Electoral College note that it isolates the impact of any election fraud, or other such problems, to the state where it occurs. It prevents instances where a party dominant in one state may dishonestly inflate the votes for a candidate and thereby affect the election outcome. For instance, recounts occur only on a state-by-state basis, not nationwide.[142] Results in a single state where the popular vote is very close – such as Florida in 2000 – can decide the national election.[143]

Representative Emanuel Celler (D – New York), Chairman of the House Judiciary Committee, responded to public concerns over the disparity between the popular vote and electoral vote by introducing House Joint Resolution 681, a proposed Constitutional amendment which would have replaced the Electoral College with simpler plurality system based on the national popular vote. With this system, the pair of candidates who had received the highest number of votes would win the presidency and vice presidency providing they won at least 40% of the national popular vote. If no pair received 40% of the popular vote, a runoff election would be held in which the choice of President and vice president would be made from the two pairs of persons who had received the highest number of votes in the first election. The word "pair" was defined as "two persons who shall have consented to the joining of their names as candidates for the offices of President and Vice President".[146]

On April 29, 1969, the House Judiciary Committee voted 28 to 6 to approve the proposal.[147] Debate on the proposal before the full House of Representatives ended on September 11, 1969[148] and was eventually passed with bipartisan support on September 18, 1969, by a vote of 339 to 70.[149]

On September 30, 1969, President Richard Nixon gave his endorsement for adoption of the proposal, encouraging the Senate to pass its version of the proposal which had been sponsored as Senate Joint Resolution 1 by Senator Birch Bayh (D – Indiana).[150]

On October 8, 1969, the New York Times reported that 30 state legislatures were "either certain or likely to approve a constitutional amendment embodying the direct election plan if it passes its final Congressional test in the Senate". Ratification of 38 state legislatures would have been needed for adoption. The paper also reported that 6 other states had yet to state a preference, 6 were leaning toward opposition and 8 were solidly opposed.[151]

On August 14, 1970, the Senate Judiciary Committee sent its report advocating passage of the proposal to the full Senate. The Judiciary Committee had approved the proposal by a vote of 11 to 6. The six members who opposed the plan, Democratic Senators James Eastland of Mississippi, John Little McClellan of Arkansas and Sam Ervin of North Carolina along with Republican Senators Roman Hruska of Nebraska, Hiram Fong of Hawaii and Strom Thurmond of South Carolina, all argued that although the present system had potential loopholes, it had worked well throughout the years. Senator Bayh indicated that supporters of the measure were about a dozen votes shy from the 67 needed for the proposal to pass the full Senate. He called upon President Nixon to attempt to persuade undecided Republican senators to support the proposal.[152] However, Nixon, while not reneging on his previous endorsement, chose not to make any further personal appeals to back the proposal.[153]

On September 8, 1970, the Senate commenced openly debating the proposal[154] and the proposal was quickly filibustered. The lead objectors to the proposal were mostly Southern senators and conservatives from small states, both Democrats and Republicans, who argued abolishing the Electoral College would reduce their states' political influence.[153] On September 17, 1970, a motion for cloture, which would have ended the filibuster, received 54 votes to 36 for cloture,[153] failing to receive the then required two-thirds majority of senators voting.[155] A second motion for cloture on September 29, 1970 also failed, by 53 to 34. Thereafter, the Senate Majority Leader, Mike Mansfield of Montana, moved to lay the proposal aside so the Senate could attend to other business.[156] However, the proposal was never considered again and died when the 91st Congress ended on January 3, 1971.

Carter proposal

On March 22, 1977, President Jimmy Carter wrote a letter of reform to Congress that also included his expression of essentially abolishing the Electoral College. The letter read in part:

My fourth recommendation is that the Congress adopt a Constitutional amendment to provide for direct popular election of the President. Such an amendment, which would abolish the Electoral College, will ensure that the candidate chosen by the voters actually becomes President. Under the Electoral College, it is always possible that the winner of the popular vote will not be elected. This has already happened in three elections, 1824, 1876, and 1888. In the last election, the result could have been changed by a small shift of votes in Ohio and Hawaii, despite a popular vote difference of 1.7 million. I 'do not recommend a Constitutional amendment lightly. I think the amendment process must be reserved for an issue of overriding governmental significance. But the method by which we elect our President is such an issue. I will not be proposing a specific direct election amendment. I prefer to allow the Congress to proceed with its work without the interruption of a new proposal.[157]

President Carter's proposed program for the reform of the Electoral College was very liberal for a modern President during this time, and in some aspects of the package, went beyond original expectations.[158] Newspapers like The New York Times saw President Carter's proposal at that time as "a modest surprise" because of the indication of President Carter that he would be interested in only eliminating the electors but retaining the electoral vote system in a modified form.[158]

Newspaper reaction to President Carter's proposal ranged from some editorials praising the proposal to other editorials, like that in the Chicago Tribune, criticizing the President for proposing the end of the Electoral College.[159]

In a letter to The New York Times, Representative Johnathan B. Bingham highlighted the danger of the "flawed, outdated mechanism of the Electoral College" by underscoring how a shift of less than 10,000 votes in two key states would have led to President Gerald Ford being reelected despite Jimmy Carter's nationwide 1.7 million-vote margin.[160]

Current proposal

On January 5, 2017, Representative Steve Cohen introduced a joint resolution proposing a constitutional amendment that would replace the Electoral College with the popular election of the President and Vice President.[161] Unlike the Bayh–Celler amendment 40% threshold for election, Cohen's proposal only requires a candidate to have the "greatest number of votes" to be elected.[162]

National Popular Vote Interstate Compact

Several states plus the District of Columbia have joined the National Popular Vote Interstate Compact. Those jurisdictions joining the compact agree to pledge their electors to the winner of the national popular vote. The Compact will not come into effect until the number of states agreeing to the Compact equals a majority (at least 270) of all electors. As of 2018, 10 states and the District of Columbia have joined the compact; collectively, these jurisdictions control 165 electoral votes, which is 61% of the 270 required for the Compact to take effect.[163] Only strongly "blue" states have joined the compact, each of which returned large victory margins for Barack Obama in the 2012 election.[164]

The Compact is based on the current rule in Article II, Section 1, Clause 2 of the Constitution that gives each state legislature the plenary power to determine how it chooses its electors, though some have suggested that Article I, Section 10, Clause 3 of the Constitution requires congressional consent before the Compact could be enforcible.[165] Some scholars note that any attempted implementation of the NPV interstate compact would face court challenges to its constitutionality. Not only are states forbidden to enter into any agreement or compact with another state without consent of Congress, but it would overturn the Constitutional provision of electing a president of the United States by the people state by state.[166]

↑Chang, Stanley (2007). "Updating the Electoral College: The National Popular Vote Legislation". Harvard Journal on Legislation. Cambridge, MA: President and Fellows of Harvard College. 44 (205, at 208).<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>

↑Describing how the Electoral College was designed to work, Alexander Hamilton wrote, "A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations [decisions regarding the selection of a president]." (Hamilton, Federalist 68). Hamilton so strongly believed this was to be done district by district, and when states began doing otherwise, he proposed a constitutional amendment to mandate the district system (Hamilton, Draft of a Constitutional Amendment). Madison concurred, "The district mode was mostly, if not exclusively in view when the Constitution was framed and adopted." (Madison to Hay, 1823)

↑"1788 Election For the First Term, 1789-1793". U. S. Electoral College. U.S. National Archives. Retrieved April 19, 2017.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles> New York, North Carolina and Rhode Island did not participate in the election. New York's electors deadlocked and abstained; North Carolina and Rhode Island had not yet ratified the Constitution. "United States presidential election of 1789". Encyclopedia Britannica. September 19, 2013. Retrieved April 19, 2017.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>

↑3 U.S.C.§ 1 A uniform national date for presidential elections was not set until 1845, although the Congress always had constitutional authority to do so. — Kimberling, William C. (1992) The Electoral College, p. 7

↑Katrina vanden Heuvel (November 7, 2012). "It's Time to End the Electoral College". The Nation. Retrieved November 8, 2012. Electoral college defenders offer a range of arguments, from the openly anti-democratic (direct election equals mob rule), to the nostalgic (we've always done it this way), to the opportunistic (your little state will get ignored! More vote-counting means more controversies! The Electoral College protects hurricane victims!). But none of those arguments overcome this one: One person, one vote.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>

↑Note: this may be a few days or even weeks before an election; many states cannot change ballots at a late stage.

↑Note: the day when the electors cast their votes is the first Monday after the second Wednesday in December.

↑Note: three electoral votes were still cast for Greeley despite being dead.

↑Ethan Trex (November 4, 2008). "Electoral College for dummies". CNN. Archived from the original on 2013-01-20. Retrieved November 8, 2012. ... In 1872, though, Democrat Horace Greeley died just over three weeks after Ulysses S. Grant thumped him in the election. ... electors who would have voted for Greeley simply spread their 66 votes among other Democratic candidates. ... Thomas Andrews Hendricks actually came in second in the election with 42 electoral votes despite not campaigning for the presidency...<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>

↑JAMES BARRON (August 27, 2012). "When the Vice Presidency Was a Job for New Yorkers". The New York Times. Retrieved November 8, 2012. ... But Sherman died in office, less than a month before the election of 1912.... The Republican Party designated Nicholas Murray Butler ... as the candidate to receive Sherman's votes in the Electoral College...<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>